Request By:
Mr. Bremer Ehrler
Jefferson County Clerk
Courthouse
Louisville, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an Attorney General's opinion advising you of your position relative to your authority to purchase election and voting material without competitive bidding as a result of the Kentucky Procurement Code. See KRS 117.145.
It is the responsibility of the county clerk to cause to be printed ballot labels for the candidates in the election. He must have printed a sufficient number of special paper ballots. He must procure supplies for a write-in vote. KRS 117.145. Implicit in the statute is the idea that such purchases are to be made by the county clerk within specified minimum periods before elections. Nothing is said about competitive bidding.
In OAG 76-496 we concluded that KRS 424.260 [the old county bidding statute] had no application to KRS 117.145, since the latter statute provides for the special purchase of election supplies by the county clerk and contains no express provisions for competitive bidding.
You point out that competitive bidding is not feasible for several reasons: (1) The number of candidates to appear on the ballot cannot be known until midnight of the 55th day before an election. In the last few years the number of candidates has ranged from 18 to 679. (2) The number of ballot combinations required cannot be determined until official certification is received from the Secretary of State, at the earliest 45 days before an election. That number has ranged from 3 to 173. (3) Specifications for bidding cannot be drawn until the number of candidates and combinations is known. (4) Ballot printing must begin as soon as those factors can be determined in order that the proper ballot may be placed on each of 692 machines, and in order that ballots can be mailed to handicapped and absentee voters (some of these go to Ireland, Germany, Spain and Turkey). (5) By the time all these factors are determined, there is no time to advertise for and receive competitive bids. (6) The exacting nature of the work makes it imperative that the printer be extremely knowledgeable in the area of election divisions existing in Jefferson County, such as congressional, senatorial, magisterial, commission, school board, 4th, 5th, and 6th class cities, etc.
Certain sections of the Model Procurement Code, KRS 45A.345 to 45A.460 [which include competitive bidding requirements] apply to every local public agency. KRS 45A.350. A "local public agency" is defined in KRS 45A.345 as a city, county, urban-county, school district, or any sub-unit of a political subdivision which shall include the offices of the county clerk, etc.
Clearly under that definition, the procurement code sections mentioned would apply to the county clerk, as a sub-unit of county government, as a general rule. We are further of the opinion that the enumerated county constitutional officers listed as sub-units of a county in KRS 45A.345(8) must generally integrate their procurement contracts with the fiscal court's procurement program.
Based upon the facts submitted, we think that competition is not feasible in applying KRS 117.145 [purchase of ballot labels and other voting supplies]. Thus under KRS 45A.380 [an exception to competitive bidding] , if you as county clerk will in writing determine that competition is not feasible [you have stated the reasons to us] and that an emergency exists which will cause public harm as a result of delay in competitive procedures, or that there is a single source of the service to be performed, then if the fiscal court will approve your declarations, you may procure such supplies by means of noncompetitive negotiation. In 72 C.J.S. Supp., Public Contracts, Sec. 9, p. 185, in speaking of competitive bidding statutes, it is written that "Generally, such statutes apply only to contracts for public work that is naturally competitive, and they may be construed to be inapplicable where the nature of the improvements to be constructed or the services to be provided are such that competitive proposals would be unavailing or would not produce an advantage." KRS 45A.380 recognizes that principle.